The need to ensure a clear procedure in capability dismissals was highlighted in the following recent Employment Appeal Tribunal cases.

In Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15/LA the employee had a heart condition and suffered from stress. During her last period of absence she was dismissed for gross misconduct as her employer believed that she had falsely claimed to be sick. The ET accepted that this belief was the reason for her dismissal. The EAT, in a judgment that looked in detail at a wide range of authorities, decided that the ET had erred. It said that what should have been addressed was whether her disability was “a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment”, and allowed Ms Hall’s appeal.

In Monmouthshire Council v Harris UKEAT/0010/15/DA the EAT found that the council, in dismissing a disabled employee, had shown there was a legitimate aim, i.e. “the safeguarding of public funds and the need to consider the stress on the remaining educational welfare officers, given its inability to fund a replacement to provide cover for the claimant’s continuing absence”. It then found that dismissal was a proportionate means of meeting this aim, asking whether the council should have been expected to wait any longer given that the medical evidence showed that it was to be expected that the employee would not be able to return to work in the foreseeable future.